Recognition of ownership of an apartment through the court - where to start?

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How the ownership of an apartment is recognized through the court is a pressing issue for many citizens. After all, everyone wants the property to be completely in absolute ownership.

In most cases, government authorities refuse to register ownership of an apartment. These refusals often have no legal basis. What to do? Where to go? We will look at what documents are needed to obtain ownership of an apartment in this article.

Where can you find your right in the law?

How is ownership of real estate recognized through the court?

First you need to know what is meant by the concept of “ownership”.

The legislator determines that the right of ownership of the property of a particular person is inalienable. It is guaranteed by law and excludes interference with this right of a third party.

Hence, as a consequence, the absolute right to own and dispose of property. These provisions are defined in Articles 34-36, 44 of the Constitution of the Russian Federation. In Article 209 of the Civil Code of the Russian Federation.

The result of all actions is registration of the described right to an apartment by a state body in the Unified State Register (based on Law No. 122-FZ of 1997). This is the final process, but it still needs to be reached.

When dividing property

Property, including real estate, is most often subject to division as a result of marital divorce, but this is also possible without divorce proceedings. Despite the fact that both spouses, being officially married, are equal before the law and have the same rights to common property, there are cases in which one of them acts as the sole owner:

• Acquisition of property before official marriage;
• Real estate received by gift;
• Inherited objects;
• State and international awards;
• Copyright.

Everything else that is not included in this list and was acquired jointly during the marriage is subject to division. Moreover, it makes no difference which spouse contributed more financially, whether both of them worked or only one of them worked. However, there are some exceptions here too. Through the court, it can be confirmed that one of the spouses invested personal funds received before marriage in real estate. The property acquired in this case will not be considered common. But you cannot take away such an object in its entirety, since the premarital amount paid will be deducted from its value. The remainder will be divided between both spouses.

The basic process of registering ownership of an apartment

It is necessary to clearly understand that the path of litigation for recognition of ownership rights appears only when disputes arise over property. And also recognizing the actions of certain officials as unlawful. And also in case of gross violation of the rights to use and dispose of property. Only in these cases can the court make any decision.

There must be a defendant. There may be situations where it is impossible to determine the address and location of the defendant on your own. In this case, it is necessary to contact law enforcement agencies, who can help determine the exact address of the defendant.

Ideally, the process of obtaining ownership of an apartment is as follows:

• contacting the Federal Cadastre and Cartography Service, whose functional centers exist in all cities;
• provision of originals and photocopies of identity documents. These could be:

1. Passport;
2. Pensioner's ID;
3. Driver license;
4. Certificate of criminal record (for those who previously served a sentence in MLS).

Passport is priority.

• provision of the original or a notarized copy of a document confirming the right of a specific person to own and dispose of property. Such documents include:

1. Contract of sale;
2. Court ruling;
3. Will;
4. Agreement on participation in shared construction.

In general, any document indicating the right of a certain person to the property being registered is suitable.

• an extract from the Unified State Register of Individual Entrepreneurs (if the apartment has already been registered and a change of owner is necessary), or cadastral or technical passports, which are issued by the developer or at the regional BTI at the location of the living space.

The rest of the list of documents depends on the status of the apartment. The only exception is a certificate in form No. 6 (certificate of family composition). It is necessary in any of the options for registering ownership of an apartment.

Recognition of ownership of an apartment through the court

The natural question most often turns out to be: “Why go to court if I am the owner of the apartment?”

Here it is worth clarifying for what reasons most often the registration of ownership of an apartment occurs through the court? These include:

• the living space was acquired during the marriage and a claim for division of property is being considered in court;
• the contractor sold an apartment in a new building, and the customer disputes the right to sell (as a rule, the property is completely seized);
• the following can be appealed in court: a will, a purchase and sale agreement, a lifelong maintenance agreement, or the procedure for obtaining an apartment itself.
• refusal of government authorities to issue documents for an apartment or register ownership.

As you can see, all cases are controversial. Such cases are not uncommon and most often they become a catalyst for getting to know the justice system.

Filing a claim

Before filing a lawsuit, the claim must be formalized in writing, taking into account all the requirements of Article 131 of the Civil Procedure Code.

Mandatory clauses of the statement of claim:

• Full name of the court in which the claim is being filed;
• Last name, first name, patronymic of the applicant, place of residence and registration, as well as telephone number for contact;
• When a proxy acts instead of the plaintiff, it is necessary to additionally indicate the same information about him;
• Address and name of the defendant, which can be either an individual or a legal entity;
• Description of the essence of the issue, what exactly and for what reasons the applicant’s rights and interests were violated;
• A detailed and clear statement of all the circumstances of the case;
• Specific requirements;
• List of attached documents;
• Cost of claim (calculated depending on the cost of the apartment);
• Date and signature of the plaintiff.

As practice shows, such claims are usually considered in favor of the plaintiff. After the court decision is received, you will need to draw up the missing papers for the apartment, if this has not been done previously, and submit a request to enter data into the unified state register of rights to real estate.

How can you prove it?

This question is the most sensitive, since in court you will literally have to present your evidence of ownership of the apartment. Suitable for this:

• any invoices, receipts, receipts for the purchase of building materials, subcontract agreements for the repair and construction of a house or apartment;
• information that confirms that the premises have been used by the same person over the past fifteen years;
• agreement of shared participation in construction;
• the apartment is new and has recently been put into operation. Technical and cadastral passports for the apartment are required.

After collecting the evidence base of your right to an apartment, you need to prepare documents directly for the court. These must be the following documents:

• statement of claim. It is better to draw it up with a lawyer. Most often, courts have law offices where you can draw up a statement of claim. Largely due to poor execution, a judge may refuse to accept a claim;
• copies of the applicant's passport;
• receipt of paid state duty;
• previously collected evidence (copies thereof).

Restoration of rights

Since the real estate market is very attractive to fraudsters, some citizens are faced with a situation where criminals falsify documents for their real estate and carry out some kind of illegal transaction with them. After this, it is extremely difficult to find scammers and, unfortunately, it is not always possible, and the victim is usually left without money and housing.

A typical picture is when an individual purchases real estate from a person who provided him with forged title papers. After the transaction is concluded, it turns out that the object belongs to other persons who have these documents. Similar situations are also resolved in court, but here it is not difficult to predict in advance what decision will be made. If the connection between the legal owners of the apartment and the scammers is not proven in court, they will return the living space to themselves. Moreover, if the scammers are not found, the buyer will be left without housing and without financial compensation.

The only way out for a deceived person is to find the scammers and bring them to justice.

We are carrying documents, but where?

Basically, a claim for recognition of ownership rights is filed with the district court at the location of the apartment.

However, based on the reasons for the dispute, the district court has the right to refuse to accept the claim for its proceedings, believing that its decision will not be able to ensure the citizen’s right to property.

In other words, a court ruling can be appealed to any higher authority, and the decision will be unlawful. In this case, the court sends the claim to another territorial body, or recommends that the plaintiff himself appeal to another district court. Written notification is given based on the results.

There are cases when a citizen simply cannot get to court. In exceptional cases, the consideration of the case may be directed to the location of the plaintiff.

If the district court refused to accept the claim, then there are two options for resolving the issue:

• correct mistakes made or inaccuracies that were rejected;
• send a complaint to the Arbitration Court.

After receiving a positive ruling from the court, all title documents and the decision itself are transferred to the cadastral service to register ownership of the apartment.

Foreclosing on the debtor's only home. Judicial practice from 06/01/2020 to 12/01/2020

Judicial practice on the issue of foreclosure on the debtor’s only residential premises is rapidly developing and a lot of interesting things have happened over the past 6 months: we were allowed and immediately prohibited from providing replacement residential premises, the use of executive immunity was considered an abuse of right and they immediately said that it was wrong, and The practice has also expanded to include many interesting positions.

This material presents the positions of the Supreme and district courts on the issue of foreclosure on the only housing in bankruptcy.

Supreme Court:

Determination of the SKES of the Armed Forces of the Russian Federation dated October 29, 2020 No. 309-ES20-10004 in case No. A71-16753/2017

This is the well-known Struzhkin case, in which the Supreme Court put forward the position that it is impossible to provide the debtor with replacement residential premises. I wrote about this case in detail here and a report from the courtroom was published here.

Determination of the SKES of the Armed Forces of the Russian Federation dated September 3, 2020 No. 310-ES20-6956 in case No. A23-734/2018.

It's up to Himes. In this case, the district court came to the conclusion that the debtor’s references to executive immunity and its further use by the court in case of malicious evasion of repayment of creditors’ claims is an abuse of law (I like this position, but it is deeply erroneous, unfortunately J), due to thus completing the bankruptcy procedure without releasing the citizen from debts.

The Supreme Court overturned the ruling of the district court and gave an interesting legal position on Article 446 of the Code of Civil Procedure of the Russian Federation:

The district court, in fact, reproached the Debtor for taking advantage of executive immunity in relation to a residential building and the land plot on which this house is located.

The debtor expressed his intention to sell the house, but he wanted to carry out this intention in 2015, based on the current state of the real estate market at that time, subject to receiving a specific amount for his property - 5,100,000 rubles, in order to pay off the mortgage and purchase other housing.

The Creditor's refusal of executive immunity in the bankruptcy procedure would entail the sale of real estate at public auction, that is, in the absence of real guarantees that the price offered by the winner, formed without the participation of the debtor, will allow, after settlements with creditors, to purchase residential premises that meet the conditions necessary for normal existence of the Debtor's family, and will not put this family in a worse financial position than the one in which it would have been if the Creditor had fulfilled the preliminary agreements.

Consequently, the Debtor’s bad faith in relation to the refusal to sell the house is not documented.

Thus, the Supreme Court concluded that the use of executive immunity in itself cannot be an abuse of law.

I agree with this position of the Supreme Court. A conscientious debtor, in the absence of legal regulation, should always be protected by executive immunity, but it is important to always establish the fact of the debtor’s good faith/bad faith.

Now we will consider the main positions of the cassation courts on the application of executive immunity for the period from 01.06.2020 to 01.12.2020.

District courts:

Marriage Relationships:

1. In the spouse's bankruptcy case, the apartment was excluded, but the debtor in his case wanted to exclude another one.

The courts, having established that the Toropovs are registered married and live together (no evidence to the contrary was presented), apartment No. 30 was excluded from the bankruptcy estate in the bankruptcy case of Toropova A.V. , since it was recognized as the only residential premises suitable for her residence, the court came to the rightful conclusion that there were no grounds for recognizing the disputed property as the only suitable for permanent residence of the debtor and refused to satisfy the application.

In the case under consideration, Toropov E.S., being a member of the family of Toropova A.V. , by virtue of the provisions of Article 31 of the RF IC, he has the right to reside in apartment No. 30, which belongs to his wife and minor children, therefore his housing rights are not violated.

The courts correctly took into account the circumstances established by the court decision of Toropov E.S. deliberate dishonest actions to alienate the disputed property in favor of a close relative in order to exclude the possibility of foreclosure on the said property and the position of Toropova E.S. that 1/5 of the share in the right to apartment No. 8 was donated to the grandmother in order to return the property belonging to her from the moment of privatization; he does not live in the apartment and does not pay utilities.

The indicated position of E.S. Toropov, among other things, indicates that he did not consider the disputed property as an object for residence.

Resolution of the Arbitration Court of the West Siberian District dated November 18, 2020 in case No. A46-23519/2019

1. The possibility of the debtor's wife acquiring another apartment through the sale of their common apartment and payment to her of the cost of the share of this apartment is not a basis for refusing to apply executive immunity.

The position of the courts is that when selling the above-mentioned residential premises, the debtor’s need for housing can be satisfied by the acquisition by the debtor’s wife of funds due to her from the sale of the disputed property of another residential premises, or by allocating funds for the purchase of housing from the bankruptcy estate, or by issuing funds to the debtor for renting other residential premises is not based on the law , since it directly contradicts the above norms and violates the constitutional right of the debtor and his family members to housing, making the implementation of this right dependent on the occurrence of certain events and actions of third parties.

Resolution of the Arbitration Court of the Ural District dated June 25, 2020 in case No. A50-34786/2017

1. Reluctance to exercise the right to an apartment acquired during marriage should not entail a violation of the rights of creditors.

The courts took into account the debtor’s right to other residential premises, namely, a two-room apartment acquired during marriage, which was excluded from the bankruptcy estate of R.V. Khudobina. as the only housing.

As the court of cassation indicated in its ruling dated January 14, 2020 in this case, despite the fact that the ownership of the above-mentioned apartment was registered with the debtor’s ex-wife R.V. Khudobina, this apartment was acquired by them during marriage and is their joint property. Reluctance of Khudobin I.V. to exercise his right to the specified apartment should not entail a violation of the rights of his creditors to the maximum possible satisfaction of their claims against the debtor.

Resolution of the Arbitration Court of the Central District dated October 8, 2020 in case No. A35-12644/2016

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4. The debtor’s residence in the apartment of his ex-wife does not deprive him of the right of ownership to a share in the common ownership of the house.

During the marriage, under purchase and sale agreements, they acquired the following residential premises: a residential building with an area of ​​491.7 square meters. m. and an apartment with a total area of ​​31.4 sq. m. m). By a court decision that has entered into legal force, the claim for the division of jointly acquired property, termination of ownership rights and recognition of ownership rights, including in relation to 1/2 share in the ownership of an apartment located at the address: Rostov-on-Don, was rejected. , st. Socialist, 111, apt. 4, with a total area of ​​31.4 sq. m.

The court noted that the debtor does not have a registered ownership of the apartment.

From the case materials it follows that the former spouses are in hostile relations, and therefore the debtor’s residence in the ex-wife’s apartment will obviously be temporary. The debtor has registered ownership of a 1/2 share of the said home ownership. The debtor is registered at the place of residence in the house for which an application has been submitted for exclusion. This is the only housing for the debtor.

In itself, the fact that Alexander Ivanovich Serbin does not temporarily live in a residential building does not deprive him of the right to housing, guaranteed by Part 1 of Article 40 of the Constitution of the Russian Federation, and therefore cannot be considered as a circumstance precluding the application of executive immunity to the said house.

The current legislation presupposes that the debtor’s opinion is taken into account when determining the residential premises to be excluded from the bankruptcy estate, and the debtor’s right to choose his place of stay and residence. Under such circumstances, even if it is proven that the debtor has other residential premises, he has the right to exercise his right to exclude the residential premises in which he lives from the bankruptcy estate. The debtor’s opinion in this case is expressed by filing an application to exclude the disputed residential premises from the bankruptcy estate. In such circumstances, taking into account the constitutional principle of freedom to choose a place of residence, as well as the specific circumstances of this dispute, the cassation court agrees with the conclusions of the appellate court on the need to exclude the above-mentioned property (the only residential premises for the debtor) from the bankruptcy estate.

Resolution of the Arbitration Court of the North Caucasus District dated August 12, 2020 in case No. A53-42967/2018

Alienation of property:

1. Alienation of the only home after filing a claim is an abuse of right.

Based on the results of a study of the factual circumstances of the case, the court of appeal found that the debtor owned shares in an apartment on Zorge Street (area 59.6 sq. m) and an apartment on Kavaleriyskaya Street (area 185.4 sq. m), while the alienation of the share in the apartment according to Sorge Street and the donation of a share in an apartment on Kavaleriyskaya Street was carried out after the agency presented demands for debt repayment to a court of general jurisdiction.

The agency presented the debtor with a demand for payment of 3,000,000 rubles. 11/29/2017, after which negotiations were held between the counterparties on the amount of remuneration to be paid to the agency . Consequently, from at least November 29, 2017, she knew about the existence of a debt that she would have to pay to the agency, was aware of the possibility of foreclosure on the real estate she owned, and therefore, consistently in a short period of time (05/08/2018 (after filing a claim by the agency) , 10/17/2018 (after the Novosibirsk Regional Court issued a ruling dated 10/11/2018 on debt collection)) made a number of transactions to withdraw all its assets, including in the form of shares in residential premises.

This behavior of the debtor does not meet the principles of reasonableness and good faith behavior in civil transactions, and is aimed at concealing his own property, at the expense of which the creditors of Tverdovskaya I.V. can pay their claims.

Resolution of the Arbitration Court of the West Siberian District dated October 22, 2020 in case No. A45-8792/2019

1. Alienation of other property is an abuse of right.

The debtor applied to the court to exclude from the bankruptcy estate the apartment located at the address: Moscow, Lavrushinsky per., 17/5, building 4, apt. 1.

The courts also indicated that after the issuance of a judicial act on the collection of funds from the funds, the debtor committed a number of actions aimed at the impossibility of satisfying the creditors' claims.

As of the date the debt arose and the court made a decision to collect the debt in addition to the apartment located at the address: Moscow, Lavrushinsky lane, 17, building 4, apt. 1, the debtor owned a number of real estate assets that were alienated after the initiation of enforcement proceedings in order to exclude the possibility of foreclosure against him.

The courts also took into account that at the time the debt arose, the debtor was registered in an apartment located at the address: Moscow, lane. Lavrushinsky, 17 building 4, apt. 8. By the decision of the Zamoskvoretsky District Court of Moscow dated December 20, 2013 on the claim of Sadykov K.S. (son of the debtor), during the consideration of which the debtor actually admitted the statement of claim, the debtor was recognized as having lost the right to use this apartment.

Having established the above circumstances, applying the provisions of Art. 10 of the Civil Code of the Russian Federation, the courts came to the conclusion about the debtor’s dishonest behavior, abuse of rights on her part and intention to cause damage to creditors.

Resolution of the Arbitration Court of the Moscow District dated September 15, 2020 in case No. A40-184236/2015

1. It is important to examine the circumstances of the alienation of property and contracts.

By a court ruling, the debtor was denied an application to exclude property from the bankruptcy estate, namely an apartment located at the address: Saratov, Naberezhnaya Kosmonavtov Street, building 2, apartment 70 .

As follows from the case materials and established by the courts, the Debtor owns an apartment on Naberezhnaya Kosmonavtov Street. Moreover, the Debtor was registered for more than 20 years in an apartment located at the address: Saratov, Khvesina Street, building 42, apartment 20 .

By determination of the Arbitration Court of the Saratov Region, concluded between the Debtor and Fedorchenko T.N. was declared invalid on the grounds provided for in Article 10 of the Civil Code of the Russian Federation, and the apartment on Naberezhnaya Kosmonavtov Street was returned to the bankruptcy estate.

When considering this separate dispute, the courts concluded that the apartment on Naberezhnaya Kosmonavtov Street cannot be considered by the court as the only residential premises suitable for the debtor to live on, which cannot be foreclosed on.

Clause 6 of the apartment purchase and sale agreement contains information that no one is registered or living in this apartment and the seller guarantees that he is transferring the apartment free of the rights of third parties.

At the same time, the purchase and sale agreement dated May 12, 2015 (for the alienation of an apartment on Khvesina Street) contains clause 9, which states that the seller, the Debtor, is registered in the alienated apartment at the time of signing this agreement.

In addition, the apartment located on Naberezhnaya Kosmonavtov Street was alienated by the debtor 11 months earlier than the apartment on Khvesina Street.

The courts noted that the Debtor registered in the apartment on Naberezhnaya Kosmonavtov Street after the court invalidated the agreement for its alienation.

At the same time, as follows from the case materials, the Debtor did not notify either the financial manager or the arbitration court about his registration, about the registration of his sister and her son in the disputed apartment on Naberezhnaya Kosmonavtov Street.

The debtor’s behavior indicates that, before the consideration of this separate dispute, he did not regard the disputed apartment as the only premises suitable for his residence, and its actions indicate an abuse of right , since apartments on Naberezhnaya Kosmonavtov Street and on Khvesina Street were alienated in favor of relatives in 2014 and 2015 years, respectively, and on the date of initiation of bankruptcy proceedings, she did not own an apartment, which could be the only suitable housing for living and was subject to exclusion from the debtor’s bankruptcy estate.

Taking into account the above, the courts refused to satisfy the Debtor's application to exclude property from the debtor's bankruptcy estate.

Resolution of the Arbitration Court of the Volga District dated July 31, 2020 in case No. A57-334/2017

1. When challenging a transaction for the donation of residential premises, the possibility of the debtor living in another premises should be checked.

Believing that the gift agreement dated April 13, 2015 was concluded to the detriment of the property interests of the debtor’s creditors, the financial manager challenged the legality of the transaction on the basis of paragraph 2 of Article 61.2 of the Bankruptcy Law) and Article 10 of the Civil Code of the Russian Federation.

Taking into account the residence of the debtor and his son in a residential building located on a land plot, the appellate court indicated that there was no fact of harm to the debtor’s creditors, and therefore refused to satisfy the financial manager’s claims.

At the same time, the appellate court did not take into account that the decision of the Krasnoznamensky District Court of the Kaliningrad Region dated March 12, 2019 belonged to A.V. Zheleznikov. ownership of a 1/2 share of an apartment in Krasnoznamensk, st. Mayskaya 4, apt. 1, with a total area of ​​49.6 sq. m ; In addition, during the period of their registered marriage, the Zheleznyakov spouses, on the basis of a purchase and sale agreement dated January 17, 2007, purchased a two-room apartment at the address: Kaliningrad, st. Griga, house 13, apt. 22, with a total area of ​​42.80 sq. m, which will also be divided only in 2021.

These circumstances are confirmed by the evidence presented in the case materials when considering this separate dispute by the court of first instance.

The appellate court did not in any way motivate the need to provide the debtor with a house with an area of ​​117.3 square meters. m and a land plot of 3000 sq. m as the only residential premises suitable for permanent residence of a debtor citizen and members of his family , while the current legislation establishes standards for the area of ​​residential premises, on the basis of which the level of provision of citizens with the total area of ​​​​living premises is determined and which is established by the local government.

Thus, at the time of donation of the disputed house and land plot to the son, they were not the only suitable residential premises for the debtor; the place of residence of the minor was not determined at this address.

Resolution of the Arbitration Court of the North-Western District dated November 5, 2020 in case No. A21-150/2018

1. When assessing the fact of need for housing, the court must check the fact of withdrawal of property during the period of suspicion and the possibility of returning the property to the bankruptcy estate.

The second reason for excluding property from the bankruptcy estate was the conclusion that it was the only one suitable for living by the debtor and his family. At the same time, the appellate court proceeded from the fact that the debtor and his wife do not have any other property suitable for living, and the possibility of returning the apartment located in Gelendzhik to the bankruptcy estate should not limit the debtor’s discretionary right to independently determine the premises for permanent residence for which executive immunity applies.

The district court cannot agree with this conclusion, since in terms of the conclusion about the absence of other property it is based on an incomplete study of the circumstances of the case, and in terms of the conclusion about the debtor’s ability to independently determine his place of residence, it does not take into account the need to maintain a balance of rights of the debtor and his creditors.

The Court of Appeal did not indicate the period for which the extract on the debtor’s property was presented, nor did it correlate it with the period of suspicion during which the debtor’s wife could alienate the real estate belonging to her to create the appearance of the absence of other suitable premises for habitation.

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The court ignored the fact of alienation of the apartment in Gelendzhik. Referring to the possibility of challenging the transaction, the court did not take into account that if returned to the bankruptcy estate, the specified apartment could be regarded as a property suitable for living.

Resolution of the Arbitration Court of the North Caucasus District dated September 24, 2020 in case No. A32-38370/2016

Residential premises were purchased with the lender's money:

1. Purchasing residential premises with the creditor’s money and further bankruptcy is an abuse of right.

The financial manager applied to the court to invalidate the donation agreement for a residential building and a plot of land.

The debtor attracted borrowed funds and used them for the construction of a three-story residential building, and after the initiation of bankruptcy proceedings, he declared that he did not have any other residential premises ; before the initiation of bankruptcy proceedings, the debtor and his family members lived and were registered at a different address, but during the bankruptcy procedure they registered at their place of residence in a residential building; as a result of the contested transaction, the title owner of the house and land plot has been changed; the debtor, having built a residential building with the assistance of creditors' funds, does not seek to reach an agreement with the creditors on the procedure for selling the residential building, purchasing a smaller residential building for it and using the remaining funds to pay off the creditors' claims. The above, in the opinion of the financial manager and creditor S.N. Berezin, indicates an abuse of right on the part of the debtor.

The courts did not examine the question of during what period and with what funds the debtor carried out the construction of a residential building; whether the debtor committed an abuse of right by building a residential building with funds received from creditors and declaring the executive immunity of the residential building from the claims of creditors to repay the debt to them by foreclosure on the residential building.

The courts did not investigate the circumstances of the actual residence of the debtor and his family members in a residential building before the initiation of bankruptcy proceedings, did not find out the reasons for the change of residence (state registration) after the initiation of bankruptcy proceedings and the motives for completing the contested transaction.

Resolution of the Arbitration Court of the West Siberian District dated June 11, 2020 in case No. A27-17129/2018

Similar practice:

Resolution of the Arbitration Court of the Ural District dated 05/06/2019 in case No. A60-13377/2017

Resolution of the Arbitration Court of the Ural District dated August 16, 2019 in case No. A71-17453/2017

The following were not purchased with creditors' funds:

Resolution of the Moscow District Court of February 21, 2020 in case No. A40-85058/2017

1. The fact of purchasing residential premises using creditors' funds must be proven.

In the case under consideration, the district court does not see any signs of abuse of right in the debtor’s actions. The disputed property was acquired by the debtor in 2004, long before the bankruptcy procedure. Evidence that the disputed object was acquired with funds received from creditors included in the register in the materials of a separate dispute was not presented.

At the same time, the debtor constantly lived in the disputed apartment with members of his family.

Thus, in conjunction with the above rules of law and explanations, it is not possible to discern in the debtor’s actions an intent to artificially create a situation where expensive housing is assigned the characteristics of the only suitable housing for habitation, in order to violate the rights of creditors and dispose of a liquid asset from the bankruptcy estate.

Resolution of the Arbitration Court of the Moscow District dated September 1, 2020 in case No. A40-222335/2018

Changing the place of permanent registration:

In a situation where the debtor, without apparent objective reasons (the opposite has not been proven), in the context of a potentially unfulfilled obligation to creditors, took actions aimed at changing his place of residence (registration), confirms the circumstances of his bad faith (clause 8 of the plenum of the Supreme Court of the Russian Federation No. 25 dated June 23, 2015 No. 25).

1. Registration of relatives who had their own property in the residential premises is an abuse of right.

At the same time, Fedorchenko T.N. (relative of the debtor) until August 23, 2019, was registered and had ownership of an apartment located at the address: Saratov, Razina Street, building 50, apartment 56, in respect of which she alienated it on September 2, 2019.

In connection with the above, the courts rightfully came to the conclusion that the actions to register Nikolnikova G.N. and Fedorchenko T.N. in the disputed apartment, after the initiation of bankruptcy proceedings by G.N. Nikolnikova, after the court recognized the transaction for the alienation of this apartment as invalid and after filing an application to exclude this apartment from the debtor’s bankruptcy estate, are intentional, aimed at abusing their rights in order to give the disputed apartment status of the only home and for the debtor to remove an expensive asset from the bankruptcy estate in order to dispose of it for his own benefit and at his own discretion, thereby harming the property rights of creditors and reducing the potential bankruptcy estate.

Taking into account the above, the courts refused to satisfy the application of Nikolnikova G.N. on the exclusion of property from the debtor's bankruptcy estate.

Resolution of the Arbitration Court of the Volga District dated July 31, 2020 in case No. A57-334/2017

1. Changing the place of permanent registration after being brought to subsidiary liability is an abuse of right.

Rejecting references to the need to determine the status of the only suitable housing for the debtor, apartment No. 6, the appellate court reasonably took into account the fact that the Debtor and his son were deregistered at another place of residence and their registration in apartment No. 6 after accepting the application in the bankruptcy case ZAO court ruling to bring the Debtor, as a former manager, to subsidiary liability for the obligations of the specified legal entity in the amount of RUB 144,024,818. and assessed these actions as unfair.

Resolution of the Arbitration Court of the West Siberian District dated November 25, 2020 in case No. A70-9704/2018

1. Registration in an apartment that is being sold at auction in order to prevent its sale is an abuse of right.

According to the seal in the passport of the debtor V.E. Ryzhenkov. On November 21, 2017, he personally checked out of the apartment at the address: Moscow, st. Glavmosstroy, 1, bldg. 2, apt. 18, and from 12/11/2017 registered at the address: Moscow, Vnukovskoye, pos. DSK "Michurinets", st. Engelsa, D. 14B .

Thus, as the court correctly pointed out, in fact, registration actions were carried out by the debtor during the period of sale of this property at auction within the framework of enforcement proceedings dated September 16, 2016 N 23546/16/77025-IP, while on the same day (12/11/2017) Application of Alexey Yudenkov Yudenkov on declaring Vladimir Evgenievich Ryzhenkov bankrupt.

At the time of re-registration in the disputed house, the debtor violated the legal ban on carrying out registration actions with real estate, which, as the court correctly pointed out, indicates the debtor’s bad faith.

The appellate court rightly pointed out that the behavior of the parties to the dispute clearly indicated the debtor’s bad faith, whose sole purpose was an attempt to circumvent the court decisions that had entered into legal force and to terminate the procedure for collecting property, the legality of which had already been confirmed in court.

In this case, the court rightfully found that the debtor’s consistent actions in terms of re-registration of his place of residence and depriving himself of expensive liquid property with the obvious impossibility of fulfilling his obligations to the creditor indicate an abuse of right and an intention to cause damage to creditors.

Resolution of the Arbitration Court of the Moscow District dated September 10, 2020 in case No. A40-230162/2017

1. Changing registration information before applying, with the exception of property from the bankruptcy estate, is an abuse of right.

The request to change the registration information of the debtor at the place of residence took place immediately before his request to exclude the Apartment from the bankruptcy estate, which casts doubt on the reality of the debtor’s intentions to change his permanent place of residence, and should be regarded as an abuse of right aimed at evading implementation settlements with creditors at the expense of property owned by the debtor.

Resolution of the Arbitration Court of the North-Western District dated September 28, 2020 in case No. A05-3506/2016

1. Registration of one of the spouses at a different address for an explicable purpose is not an abuse of right.

At the same time, the courts took into account the explanations of N.S. Utkina. and Utkin S.S., according to which the registration of their son at the address: Tver, st. Zinaida Konoplyannikova, <...>, was carried out with the aim of placing a minor child in an educational institution - secondary school N 53 - the nearest educational institution from the actual place of residence.

The courts also established that the following people are registered and live in the named apartment: Utkina Valentina Nikolaevna (mother of the debtor), Utkin Viktor Mikhailovich (brother of the debtor) and his family (wife, daughter born in 2010).

Resolution of the Arbitration Court of the North-Western District dated September 15, 2020 in case No. A66-18719/2018

Interesting cases:

1. The transfer of non-residential premises to residential premises after the start of bankruptcy indicates an abuse of right.

According to the decision of the Department of Urban Planning and Architecture of the Lipetsk City Administration in connection with the appeal of S.E. Tatsitov. A garden non-residential house is recognized as a residential building.

Tatsitov S.E., referring to the fact that the specified premises are his only home, appealed to the regional arbitration court with an application to exclude him from the bankruptcy estate.

Considering that at the time of the introduction of bankruptcy proceedings against the debtor, the property - a garden house - was a non-residential premises , Tatsitov S.E. was registered for a long time at his place of residence in an apartment belonging to his wife, actions to change the purpose of the property were carried out by the debtor without the consent of the financial manager , the courts of the first and appellate instances came to the rightful conclusion that these actions constitute an abuse of right aimed at deliberate withdrawal from the bankruptcy estate of property that may be foreclosed on in order to repay established accounts payable.

A claim based on abuse of right is not subject to judicial protection.

Resolution of the Arbitration Court of the Central District dated June 25, 2020 in case No. A36-6276/2018

1. Funds from the sale of an apartment do not have executive immunity.

Considering that in this case, the debtor, having decided to sell the residential premises, demonstrated that he had no need for it, and in fact independently renounced the right to live in the residential premises, thereby removing the property from the scope of executive immunity , the appellate court indicated that funds received from the sale of the specified property are the income of the debtor, subject to inclusion in the bankruptcy estate of the debtor.

The money was transferred by the buyer of the apartment to the debtor in April 2021, but information about what the money was spent on, taking into account the available information about transferring it to his ex-wife for the maintenance of their joint minor children and for the purchase of an apartment, was not presented in the case file. The corresponding explanations by the persons participating in the case were also not given to the district court; information about the acquisition of Bezgodova I.V. no other residential premises are presented. Thus, taking into account the explanations given by the debtor to the district court regarding the fact that he currently lives with his mother at the address <...>, there are no grounds for concluding that the debtor actually needs housing.

Resolution of the Arbitration Court of the Ural District dated 07/08/2020 in case No. A50-24149/2017

1. Traveling abroad for the purpose of hiding from law enforcement agencies is not a basis for refusing to apply executive immunity.

Considering these circumstances, taking into account the debtor’s explanations that from 2014 to the spring of 2021 inclusive, she constantly lived in the disputed apartment together with her eldest daughter Kuznetsova A.D., who at that time was a minor and was in her dependent; in the spring of 2021, the debtor, for family reasons (in connection with the birth of a child), temporarily left the territory of the Russian Federation ; from 2014 to the present, the debtor’s eldest daughter, A.D. Kuznetsova, has been living in the disputed apartment, who since 2021 has been bearing the burden of maintaining the premises, taking into account that these explanations are confirmed by the case materials and not refuted by other evidence, and also considering that temporary residence the debtor abroad has no legal significance for the dispute under consideration, since the debtor is a citizen of Russia and has no other housing on the territory of the Russian Federation , the appellate court came to the conclusion that in the current situation there are no grounds for not applying the provisions of Article 446 of the Civil Procedure Code of the Russian Federation to the disputed apartment as the only residential premises owned by the debtor.

The appellate court proceeded from the general principles of civil and constitutional legislation, according to which the debtor cannot be deprived of the only housing he owns on the territory of the Russian Federation, in which a member of his family lives .

The district court considers the findings of the appellate court to be consistent with current legislation. It should be noted that the mere fact that the debtor does not temporarily live in the disputed apartment, hiding from law enforcement agencies (which was indicated by the debtor, including in his responses to cassation appeals), does not deprive him of the right to housing guaranteed by part 1 Article 40 of the Constitution of the Russian Federation , and therefore cannot be considered as a circumstance excluding the application of executive immunity to the disputed apartment. This legal position is reflected in the ruling of the Supreme Court of the Russian Federation dated January 23, 2020 No. 308-ES19-18381.

Resolution of the Arbitration Court of the Ural District dated July 31, 2020 in case No. A50-42084/2017

Thus, over the past six months, the courts have concretized many cases of abuse of law, which is extremely useful for the further development of practice.

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Some nuances

How is ownership of a house recognized through court?

Every legal dispute has nuances, and recognition of the right to an apartment also has its pitfalls.

It all starts with a statement of claim. Inaccuracies in it and insufficient evidence provided may work against the plaintiff.

It is necessary to clearly state the essence of the issue that has arisen before the judicial authority and describe your opinion on the possibility of resolving the dispute.

This is necessary so that the judge initially sees the position of the plaintiff and his desire to find a compromise with the defendant.

Evidence is perhaps the most important element in legal proceedings. All previously collected evidence will be presented at the trial. That is why it is necessary to break down evidence into groups and chronology.

Judges are lawyers, and therefore they like it when everything is presented based on the history of the controversial issue. It is important that the plaintiff’s information appears in the papers as often as possible, since unnamed documents may be considered inappropriate evidence.

In a situation with inheritance

You can enter into an inheritance on one of two grounds: either to be included in the will, or, if there is no such document, to be an heir of the first priority (the second, if there is no one from the first, and so on). The testator's property is not automatically divided. To obtain it, you need to contact a notary's office and submit an application to enter into inheritance rights. This must be done within six months after the opening of the inheritance.

In case of inheritance, you can confirm your ownership rights through the court as a result of the requirement:

• Recognize the will as invalid and revoke it;
• Restore the missed deadline for entering into inheritance;
• Recognize the rights of minors and incompetent persons.

A will can be declared invalid through the court if it contains gross violations, errors, and also if the testator at the time of drawing up and signing the document was incapacitated, was under the influence of psychotropic drugs or alcohol. If such facts are confirmed, the court will be forced to annul the will and renew the deadlines for entering into inheritance. After this, the heir is obliged to confirm that he really was not notified of the death of the testator or had valid reasons why he could not formalize the rights of inheritance on time.

Time limits within which it is possible to appeal to the courts

All plaintiffs face statutes of limitations for filing lawsuits. In world practice in civil law cases, the statute of limitations is calculated for three years. During this time, you need to resolve your issue.

If a claim was filed during this period, the statute of limitations is interrupted and is not counted while the issue is being considered by the court. If the statute of limitations has passed, then it is possible to restore them by filing a claim with the arbitration court, but the grounds for this must be strictly compelling.

What to do with a mortgaged apartment?

Many apartments are purchased with a mortgage and it is not always clear who should be named as a defendant in a lawsuit. In some cases, there may be several parties to the process, including:

• financial institution;
• developer (based on the situation).

If the consideration of the case concerns a mortgaged apartment, registration of its ownership is possible, but with restrictive measures by order. This may continue until the mortgage is paid off in full. The restrictions can only be lifted through the court, but after the debt is paid off.

There are isolated situations when a part of the apartment was previously seized and it was not lifted in a timely manner. In this situation, the plaintiff may be alone and in the statement of claim ask to lift the arrest with subsequent recognition of his ownership of the home.

What to include in a statement of claim

The claim is made in writing in accordance with the provisions of Article 131 of the Civil Procedure Code.

The contents of the paper should reflect the following information:

• name of the court;
• information about the applicant or his representative - personal, address, contact information;
• name of the developer and office address;
• a description of the essence of the problem, how exactly the plaintiff’s rights were violated;
• a statement of the circumstances and nuances of the case;
• requirements imposed on the defendant;
• list of documents.

The application is certified by the signature of the plaintiff with a transcript and the date of drawing up the paper.